Constitutional Crisis?
Cole, David
COLLOQUIUM THE THREAT OF terrorist attacks on the scale of those of September 11, 2001, or worse cannot be denied. That reality calls at a minimum for a reevaluation of the balance between...
...What have we gained for these sacrifices...
...The Rand Corporation reported 2,300 terrorist incidents worldwide in the two years that preceded September 11, but 4,422 incidents in the two years that followed...
...Meanwhile, we have sacrificed the legitimacy of our enterprise...
...Fair process has also been thrust aside in the name of prevention...
...The true path to security may well require sacrifices in liberty, but they must come within a framework of commitment to the fundamental principles of the rule of law...
...What he doesn't say is that his department's policy was not to deport until an individual was cleared of any terrorist connections...
...It has devised a system of military tribunals in which defendants can be convicted and executed on secret evidence, yet applies this system only to foreign nationals...
...And in the most extreme example, the administration claimed the unilateral power to declare any human being anywhere in the world an "enemy combatant" or, as George W. Bush puts it, a "bad guy," and lock him up indefinitely and incommunicado without any hearing whatsoever...
...To Our Contributors A few suggestions: (1) Be sure to keep a copy of your manuscript...
...It has justified denying any rights to the men held at Guantanamo Bay, Cuba, on the ground that they are foreign nationals outside our borders, and therefore enjoy no rights...
...If there's a delay, it's because a few editors are reading your article...
...In the name of what John Ashcroft calls "the paradigm of prevention," the administration has sacrificed virtually all of the core commitments of the rule of law and in the process has very likely made us less, not more, secure...
...Please use inclusive language so that we don't have to make adjustments during editing...
...The approach adopted by the Bush administration since September 11, however, has been anything but balanced...
...By so doing, the administration has not only squandered the sympathy the world expressed for us on September 12, 2001, but has generated the highest level of anti-Americanism ever recorded in our nation's history...
...As we're not an academic journal, we prefer that they, wherever possible, be dropped altogether or worked into the text...
...John Ashcroft often boasts that he has deported 515 men in connection with the investigation of the September 11 attacks...
...soil...
...Check all your figures, dates, names, etc.—they're the author's responsibility...
...Still, as of this writing there has not been another terrorist attack on U.S...
...so these are 515 misses, not hits, in the war on terrorism...
...Around the world, terrorism has markedly increased since Bush launched the war on terrorism...
...5) We're usually quick in giving editorial decisions...
...The administration argued in the Supreme Court that it would be unconstitutional for Congress to limit its power to detain so-called "enemy combatants" at will...
...Yet in the wake of September 11, the administration has frequently sought to impose its most extreme burdens selectively on foreign nationals, as if to say to the American people, you can have your liberty and your security, too...
...The rule of law, the foundation of any system of civil liberties, includes five basic commitments: to equality, transparency, fair processes, checks and balances, and fundamental human rights...
...Of the eighty thousand men called in for registration, fingerprinting, and photographs, solely because they came from Arab and Muslim countries, not one has been charged with any terrorist crime...
...The government refuses to disclose their identities to this day, even though it has determined that virtually none of them had anything to do with terrorism...
...We will not consider manuscripts submitted simultaneously to several publications...
...In any fair system of justice, the balance between liberty and security ought to be struck in the same place for all...
...But it's hard to attribute that result to the sacrifices described above...
...Yet the administration has abandoned its commitments to each of these values...
...THE EDITORS 10 n DISSENT / Fall 2004...
...Thus, the government has locked up more than five thousand persons in anti-terrorism preventive detention initiatives, virtually all of them foreign nationals...
...The only actual terrorist act stopped since September 11 was that of shoe-bomber Richard Reid, and Ashcroft can take no credit for that...
...The enemy combatant authority also demDISSENT / Fall 2004 n 9 COLLOQUIUM onstrates the administration's attitude toward checks and balances...
...Or take a chance and send us your article...
...That commitment has been sadly lacking...
...Look at our last few issues to see if your idea fits in...
...Thousands of foreign nationals have been denied release on bond without any evidence that they posed any danger that would warrant their detention...
...And in the Justice Department's infamous torture memo of August 2002, it argued that when the president acts as commander-in-chief, he is above the law, and neither Congress nor international law can prohibit him from authorizing torture if he so chooses...
...Many of those arrested in the wake of September 11 were arrested in secret and tried in secret—effectively "disappeared...
...DAVID COLE is a professor at Georgetown University Law Center and author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism...
...And that anti-Americanism is the greatest threat to our security in the years and decades to come...
...Finally, as the torture memos, Abu Ghraib, and Guantanamo so vividly illustrate, the administration has sacrificed commitments to some of the most fundamental human rights recognized in international and constitutional law—including the rights not to be locked up arbitrarily and tortured...
...4) Notes and footnotes should also be typed double-spaced, on a separate sheet...
...Meanwhile, the Patriot Act expands the government's surveillance powers while making it a crime for persons affected by its provisions to make that fact public...
...3) Type your ms double-spaced, with wide margins...
...2) Please don't write to ask whether we're interested in such and such an article—it makes for useless correspondence...
...And please remember that we can't consider articles unless they're accompanied by a stamped, self-addressed envelope...
...If a diminution in liberty can be shown to yield a substantial security gain, the sacrifice may well be worth it...
...Of the five thousand foreign nationals detained in anti-terrorism measures, for example, only one has been convicted of any terrorist crime of any kind, and that conviction is under a cloud because the prosecution failed to disclose to the defense evidence that its principal witness lied on the stand...
...With the exception of the prohibition on torture, most civil liberties are not absolute, and therefore inherently entertain the possibility of balancing...
...And it has justified massive ethnic profiling by claiming that it is merely targeting "foreign nationals based on country of passport...
...The most important is equality...
...COLLOQUIUM THE THREAT OF terrorist attacks on the scale of those of September 11, 2001, or worse cannot be denied...
...If you are submitting to Dissent electronically, our e-mail address is editors@dissentmagazine.org . Please include a postal address and phone number...
...That reality calls at a minimum for a reevaluation of the balance between liberty and security...
...We have also sacrificed commitments to transparency...
...The goal of keeping America secure from other attacks like those of September 11 is undoubtedly legitimate, but we have adopted illegitimate means to further that end...
Vol. 51 • September 2004 • No. 4
